Christopher Ritho vs Abeid Ally Ngojwike ((PC) Civil Appeal No. 5 of 2006) [2000] TZHC 76 (15 April 2000)

i . r- IN THE HIGH COURT OF TANZANIA AT ARUSHA . · (PC) CIVIL APPEAL NO. 5 OF 2006 ( c/f Monduli District Court Civil Appeal No. 16 of 2004, Original Mto wa Mbu Primary Court Civil Case No. 49 of 2(J02) CHRISTOPHER RITHO ........................................ APPELLANT VERSUS ABEID ALLY NGOJWIKE .... ~ .............................. RESPONDENT 13/11/2007 & 15/04/2008 JUDGMENT N.P.Z. CHOCHA, J This is the second appeal by Christopher Ritho, a plaintiff at the trial primary court at Mto wa Mbu and an appellant in the 1 st appellate court at Monduli District Court. In all lower courts, the appellant was declared a winner against Abeid Ally Ngojwike - respondent/defendant. The appellant instituted a claim at the Primary Court. He claimed repayment of a loan advanced to the respondent Tshs. 150,000/= plus interest accrued, now ranged to Tshs. 23,052,000/= or else the respondent shall surrender a plot. The loan was . ,,

'\ 't advanced to the respondent on the 9 th December, 1999 for business ti purposes. There was evidence that the intended business could not take off as planned. The respondent alleged that he refunded the loan. The appellant disputed the allegation. The trial court found that the loan was not repaid because had the loan been repaid, parties could condence the same in writing as it had been the case when lending money to the respondent. The trial court dismissed a claim for interest in that it was an illegal one. It found that the appellant was entitled to refund of Tshs. 210,000/= being the value of the plot failure whereof he shall be entitled to possession of the plot. The appellant in the first appeal complained that the plot had been undervalued. He was of the view that Tshs. 210,000/= was not enough. The first appellate court dismissed the appeal and confirmed the trial court's judgment. The appellant is here on second appeal. He is not comfortable with the award of Tshs. 210,000/=. He said the quantum is not quantified. It is not explained how was it arrived at. 2

The appellant has a point. The advanced loan was Tshs. ti 150,000/= recoverable with interest which the court dismissed. Therefore any sum beyond shs. 150,000/= agreed earlier must be . sufficiently explained. The sum of Tshs. 60,000/= in excess of shs. 150,000/= is unexplained. The 2 nd appellate's power to interfere concurrent findings of the lower courts must be exercised carefully, preferably where there is a non or wrong finding of the fact. Going through the proceedings of the trial court out of which the award of Tshs. 210,000/= was born and confirmed by the 1 st appellate court, I am not very comfortable with the finding because it is not supported with evidence. The trial court disbelieved the defence story because there was no any written document to support the alleged repayment of Tshs. 150,000/=. Firstly, there is no condition in the loan . agreement that repayment must be written. Secondly, there is a very clear evidence from Alex Kananda, who was a witness to a loan, and according to the loan agreement, he witnessed the loan in capacity of the 10 cell leader. We all know 3

how famous and important the ten cell leader have been both before 'ti . and post multipartism before an ordinary citizen. The witness who was called by the plaintiff/appellant during the trial told the court the following: "Baada ya siku tano mdaiwa alidai biashara imeharibika hivyo akamrejeshea mdai fedha zake zote 150,000/= ikabakia ile riba ambayo in Shs. 36,000/= ........................... . Hoja za Mdai: Niliziona fedha akazipokea kutoka kwangu ....... " Understandably, the credibility of the witness is the monopoly of the trial court. PW 2's statement reproduced hereinabove, was /is incredibly straight forward to the effect that the loan Tshs. 150,000/= was repaid to the appellant. It is not on record why did the court disbelieve the same. The appellant himself who had brought the witness did not apply to have his own witness discredited whose evidence was completely against the plaintiff's case. It is on this basis that I respectfully differ with the trial court's finding that the loan was not repaid. Actually PW 2's evidence fully support's the defence. An award of any amount on pretext of repaying the loan to the appellant is 4

double payment. The award of shs. 210,000/= to the appellant is unexplained, unquantified and therefore unfounded. The order is quashed. The conduct of the appellant from the evidence on record is that the appellant is eying the mortgaged plot. The appellant is unfairly ambitious. He cannot have both the loan repaid and a plot simultaneously. It was not fair for the lower courts to dismiss entirely claim for interest bearing in mind that the transaction was business oriented. Since the appellant had the loan repaid within five days, I allow interest on the principal sum, at a court rate for five days which the respondent retained the loan. Except for what is evaluated and particularly on interest, the appellant is not entitled to any payment in the form of repayment of loan. This appeal is dismissed with costs. N.P.Z. CHOCHA JUDGE 15/04/2008 5 /

Court: Judgment delivered in absence of all parties. The same shall be communicated to them through the registry. Copies also shall be acquired upon need or served to the parties. /VM 6